Compensating Victims of Toxic Substances: Issues Concerning Proposed Federal Legislation

Theodore L. Garrett

Editors' Summary: In 1980 Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, which provided a federal scheme for cleaning up hazardous waste sites and a so-called "Superfund" to finance the cleanups. Congress also considered but failed to include provisions to compensate victims of hazardous waste exposure. Instead, it created a study group, which in 1982 recommended a remedial system for hazardous waste injuries. In this article, Theodore Garrett disucusses the study group report and analyzes the strengths and weaknesses of proposed legislation that has since emerged. He explores two threshold issues concerning victim compensation legislation that have yet to be considered fully — defining the nature and extent of the problem and determining the adequacy of our legal system in compensating claimants and ensuring fairness to defendants.He then discusses the issues in framing federal legislation, including what kinds of exposures are to be covered, who is to finance a compensation fund, what kinds of damages should be recoverable, whether plaintiffs should have a choice of remedies, and whether tort law should be "reformed" to compensate victims. Mr. Garrett concludes by presenting a victims compensation scheme preferred by industry and suggesting ways to protect innocent defendants through substantive tort law.

Mr Garrett is a partner in the law firm of Covington & Burling in Washington, D.C. This article is based on a paper he presented at the American Law Institute-American Bar Association and Environmental Law Institute course of study, Water and Air Pollution, May 7, 1983. The views expressed are solely those of the author. Mr. Garrett wishes to acknowledge the assitance of Jeffrey E. Stake.

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An important debate as to whether and how to compensate persons injured by exposure to toxic substances was launched last year by an official report to Congress recommending federal legislation. Current interest in the issue has been further propelled by other recent developments, including the well-publicized plight of Times Beach, Missouri residents, an erosion of public confidence in the Environmental Protection Agency's (EPA's) ability to protect the environment, the asbestos litigation explosion, and concern with the costs, delays, and uncertainties of litigation.

Until Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)¹ in 1980, there was no general federal scheme for remedying harm caused by disposal of hazardous waste; instead the focus was on prevention of pollution. During the debate over Superfund, Congress considered the question of whether and how to compensate victims of exposure to hazardous wastes, but it proved to be too difficult an issue to address at that time, and proposed solutions were deleted from the bill. Instead, it became clear that a great deal of further study was needed, and Superfund provided in § 301(e) for the creation of a study group to examine the problem.² The study group issued its report in 1982, recommending that federal legislation be enacted to provide an administrative means for victim compensation and that state tort law be changed so as to allow for easier recovery.³ Some members of the group issued separate statements disagreeing with many of the majority's conclusions.

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Since that report, various specific bills have been introduced in Congress, and other reports and proposals have emerged.⁴ The report and its responses raise a number of difficult issues concerning the nature and extent of the problem, whether the current legal system provides victims adequate avenues of recovery, and whether the proposed victim compensation legislation is fair to all parties.

The Law of Toxic Substances

During the past two decades, the harm caused by toxic substances has received the attention of the general public and all three branches of our federal and state governments, as well as industry, environmental, labor, and scientific groups. The law of toxic substances has changed and grown dramatically during this period. To appreciate the current debate concerning victims compensation, a historical perspective is useful.

The United States inherited its common law and statutory heritage from England.⁵ The principal body of law governing injury due to toxic substances was the law of torts. This field of law defines liability for intentional or negligent infliction of bodily harm or death or destruction of property. Tort law has been the province of the states under our federal system.⁶

An important feature of tort law was that it operated after the fact, rather than seeking to prevent harm from occurring. The courts became involved after damage had occurred, and on a case-by-case basis decided whether the defendant's conduct was intentional or created an unreasonable risk of injury under the particular circumstances. A significant feature of tort law is the requirement of causation. It was considered elementary that a defendant should not be held liable unless his conduct caused plaintiff's harm.

The 1970s witnessed an explosion in federal laws and regulation in the environmental area. Today toxic substances are regulated from production and sale to consumption and disposal. Over two dozen federal statutes empower four federal agencies to regulate toxic substances. The largest share of federal responsibility has been placed with EPA.⁷ Among the statutes it administers are the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Resource Conservation and Recovery Act, and Superfund. These statutes seek to prevent harm to human health or the environment through permit mechanisms and health or technology-based standards.⁸

The Superfund § 301(e) Report

Section 301(e) of Superfund calls for a study of the adequacy of existing common law and statutory remedies for harm to man caused by exposure to hazardous substances. The statute requires the study report to be conducted by an independent group and to be submitted to Congress with appropriate recommendations that address the need for, and form of, revisions to existing statutory or common law.

The 1982 report focuses on the health and environmental effects of the types of incidents and conditions covered by Superfund, i.e., spills of hazardous substances and releases from hazardous waste sites.⁹ The study report is organized in four parts and 16 appendices.Part I summarizes the establishment of the 12-member study group and the nature of its assignment. Part II discusses the high degree of scientific and technical uncertainty attendant upon any analysis of the danger to health and the environment posed by hazardous substances. The report in effect acknowledges that its recommendations are not built upon a foundation of reliable data documenting the scope of the problem.

Part III analyzes the adequacy of existing statutory and common law remedies. The report concludes that although there are in theory a variety of causes of action available to persons harmed by exposure to hazardous wastes, a number of significant procedural and substantive "hurdles" frequently bar recovery. Chief among these so-called barriers are the difficulty of proving causation, the difficulty of allocating liability among multiple defendants, the high cost of hazardous waste litigation, and restrictive statutes of limitations.

Based on the above conclusions, Part IV recommends a two-tier remedial system for injuries resulting from exposure to hazardous wastes. "Tier One" proposes an administrative compensation system implemented by federal statute that would allow claims for certain personal injury damages (principally medical expenses and lost earnings) against a fund financed by the oil, chemical, and waste disposal industries. No showing of fault would be required, and the system would significantly ease traditional burdens of proof of causation. The fund would be permitted to sue for reimbursement from responsible parties only as to damages arising from activities taking place after the enactment of the implementing federal statute.

"Tier Two" recommends that the state tort law compensation system be continued with certain changes to enhance the likelihood of recovery. In particular, the study group urges the adoption of joint and several liability, but suggests that any change in proof of causation be left to the development of the common law. A person [13 ELR 10174] claiming injury from hazardous waste is not required to make a binding election between Tier One and Tier Two but cannot have a double recovery for the same damages.

The Need for Federal Legislation

There are two threshold issues concerning proposed federal victims compensation legislation. The first is to define the nature and extent of the problem. The second is whether our current legal framework has appropriate mechanisms to provide just compensation by those responsible to persons injured by toxic or hazardous substances. Even if one assumes that legislative action is appropriate at this time, there remain difficult policy choices in formulating a compensation scheme that is fair to all parties.

The proponents of legislation see the problem as involving scientific and legal dimensions. The legal aspect lies in our present tort system for compensating injuries, which requires plaintiff to prove that harm was caused by defendant's negligence. The scientific dimension concerns the nature of toxic torts. The state of scientific knowledge is such that medical conclusions cannot often be drawn as to the causes of particular diseases. The problem is compounded where individuals are exposed to many different substances from different sources and the diseases have long latency periods.

The final factor is the increase in toxic tort litigation. Love Canal has reportedly generated 13,000 private suits with claims of over $2 billion. The estimated number of suits by asbestos victims is as high as 12,000, and one company facing this mass of litigation received considerable publicity when it filed for bankruptcy under Chapter 11. There is a concern that toxic tort litigation will increase and that a better way to compensate victims is needed.

Who Are the Victims?

At the outset, it should be noted that a critical issue is whether there are sufficient numbers of hazardous waste "victims" to warrant federal action. This question has been little discussed, probably because little is known. The number of persons exposed to hazards at any one waste disposal site may be impossible to calculate. Even the number of sites posing a serious health threat is widely disputes; estimates range from 400 to over 2,000. Compounding the problem, there are little useful epidemiological data quantifying the connection between illnesses and specific sites or substances. These uncertainties, among others, led the Superfund study group to conclude that policy makers "will need to make decisions on an assessment of risks that are lrgely unquantified."

It will undoubtedly be argued that the proponents of legislation should show that the inadequacies of current law have had or will have an effect on enough innocent victims to justify the social costs of a significant change to the nation's laws. That burden of showing more than a theoretical possibility, however, has not yet been carried. A report by the Environmental Law Institute¹⁰ quotes the Surgeon General to the effect that it is impossible to determine the magnitude of the toxic chemical risk. A victims compensation bill introduced by Senator Stafford, S. 917,¹¹ simply declares as a finding that the entire population of the United States is regularly and involuntarily exposed to toxic substances, and that many persons suffering from disease, illness, or injury resulting from exposure are uncompensated. Senator Mitchell, another sponsor of legislation,¹² stated flatly that the question is not whether we should provide victim compensation, but rather how we should accomplish it. Nevertheless, the issue is of primary importance and deserves a careful answer.Even if one is willing to assume that there is a "problem," it still seems reasonable to suggest that an approach to legislative or other solutions will be far more likely to succeed if we have a better understanding of the nature and extent of the problem.

The Adequacy of the Current Legal Framework

The other half of the threshold determination should be whether the current legal system provides injured parties adequate avenues for recovery. The proponents of legislation start with the premise that there exists no general federa scheme, that little state legislation exists, and thus that the inquiry must focus upon state common law. Whether the existing web of judicially created rights is deficient has received more attention than the question of how many persons are involved, but there is still a need for thorough analysis. A brief summary of the issues in this area follows.

A shortcoming cited by proponents of toxic victim compensation legislation is that most prevailing statutes of limitations are too short. Because the effects of exposure to toxic substances are often unseen for long periods of time, it is argued that the limitations period must be extended to allow the claims. Even assuming that many effects are latent, it should be asked to what degree traditional rationales supporting the existence of statutes of limitations should be sacrificed in order to give all victims an opportunity to litigate.

Defendants have a legitimate interest in speedy trials. They should have an adequate opportunity to gather evidence before the facts are lost — especially if the burdens of proof on some issues are shifted from the plaintiff. In other words, the question here could be recast from "Does the statute prevent recoveries?" to "Does the statute allow as many suits as is possible without unfair prejudice to defendants?"

A further question is whether the federal government should usurp the states' prerogative in establishing statutes of limitations. Is there anything that makes the necessary balancing an especially federal concern? Should the weighing not rest, as it has, with the states? The common framing of this issue appears to reflect a result-oriented approach rather than concern for fairness. Moreover, many states have already acted: 39 states have adopted a "discovery rule" under which the statute of limitations does not run until the injury is or should have been discovered.

A second proffered weakness of the present system is [13 ELR 10175] that it is difficult to identify the proper parties defendant. The difficulty arises because the ownership of a hazardous waste site may change and the plaintiff may have been exposed to a number of different wastes, and the wastes may have been shipped to the site by many different companies.¹³ Once again, one may question whether the protections currently available to defendants are not justified. The unavailability of proper defendants does not justify proceeding against improper ones.

The cost of litigation is another purported barrier to recovery. The study group report, however, acknowledges that procedural improvements could lower the barrier without restructuring the entire field of toxic tort law. Moreover, the cost of litigation often avoids groundless law suits. It is also arguable that such improvements should be left to the states (as indicated by the report). Allowing each state to find its own solution allows flexibility and experimentation and may increase the likelihood that the best solutions will be discovered.

Another alleged problem is that causation, which is normally required to be shown for recovery in toxic tort suits, is almost impossible to prove. Because of the problems relating to long latency periods and confounding causative factors, causation is a major hurdle. But that may not be a persuasive reason to eliminate the requirement. Little fairness results from shifting the losses from innocent plaintiffs to innocent defendants. Proof of causation is a well established element of tort law precisely because it reflects the fundamental notion that it is not fair to hold a party responsible for harm he has not caused.

The poor selection of viable common law causes of action is also noted as an obstacle. Negligence is deemed unavailable because of its duty of due care element; likewise with trespass because it avails only those having a possessory interest in real property. Nuisance is criticized by the study group for its balancing of interests, but the report fails to note that balancing is often curtailed in cases involving dangerous substances.Strict liability is condemned for its variability — five doctrines are said to exist. There is no reason to assume, however, that variation is bad; arguably, such experimentation is the fastest route to the best solutions. The report notes that some courts introduce elements of foreseeability and social utility when applying the strict liability doctrines, but careful analysis should be done before the existence of such cases is allowed to form the foundation for wholesale changes to the law. As the report seems to admit, it is far from clear that aggrieved plaintiffs lack an adequate legal theory on which to prosecute their claims.

In summary, even if there are significant numbers of uncompensated innocent victims, there are good reasons not to shift the risk of loss to what may, in reality, be equally faultless defendants. Plaintiffs do not lack viable causes of action and existing common law rules may well represent a nearly optimal balance of equities — at least as between plaintiffs and defendants. Therefore, it can be argued that any legislation aimed at compensation should shift the risk of loss not to the other party in federal or state court litigation, but rather to a third party or fund on which the burden may be more fairly placed.

Issues in Framing Federal Legislation

Victim compensation legislation involves a number of major issues and policy choices, assuming a decision by Congress that legislation is warranted. First, the problem must be defined. Should legislation be directed at exposure to hazardous waste sites? Should it cover occupational exposure? Should it be broadened to include all exposure to toxic or hazardous substances? As coverage widens, more prospective claims are brought, the compensation scheme has more of an impact, and more constituencies are affected. If an administrative fund is involved, this makes the funding problem greater.

Second, several of the proposals center on the creation of an administrative compensation fund which is fairly easy to enter. Three major issues must be considered as to such a fund. Who is to finance the fund? Should it be financed by the general public? All inudstry? The oil and chemical industries? The broader the compensation scheme, the more pressure there will be to broaden the financing. The narrower the financing, the more criticism there will be as to fairness.

What kind of recoveries should be allowed? Should it be limited like workmen's compensation? Or should it allow a broader recovery including punitive damages?

Should the federal administrative scheme be exclusive or nonexclusive? A federal administrative scheme that would preempt state and federal tort law in the area could have more appeal to industry. If nonexclusive, should the plaintiff at least be required to elect remedies? A program without such an election can be expected to raise the hackles of industry representatives concerned about what has been called a national no-fault slush fund used to finance tort litigation.

The problem, then, is to desibn a fund that provides compensation to those genuinely in need — but does not create a system that can be so abused that it brings itself down.

Third, although many feel that a well-designed administrative compensation scheme would be sufficient, there have also been proposals to "reform" tort law — for example, by providing a federal right of action with liberalized rules of evidence, or by requiring state courts to observe new federal rules of evidence. These proposals may run into stiff resistance. Such legislation would not simply provide administrative relief, but would change some long-standing concepts in our legal system. It is one thing to provide for compensation to innocent plaintiffs, but quite another to shift the burden to blameless defendants who did not cause the injury.

A reporter once asked Justice Black about out complex criminal law rules and the burdens they placed on prosecutors. "Of course they do," Justice Black was reported to reply. "It's supposed to be difficult to send a man to jail. That's the purpose of the Bill of Rights." Many of the so-called obstacles to recovery in our tort law system are designed to guarantee due process of law before a person [13 ELR 10176] is deprived of property. Changing the substantive or evidentiary standards — for example by shifting the burden of proof from the plaintiff's shoulders onto those of the defendants — raises concerns about balancing rights. When the scientific data are inconclusive, deciding who has the burden of proof may decide the case. Similarly, liability in the absence of a showing of causation raises serious legal issues.

Current Legislative Proposals

Recently proposed federal legislation provides a more concrete foundation for the toxic tort debate. The following is a brief discussion of those proposals. Many of the provisions of the bills are similar.

The Stafford Bill

One of the leading contenders is S. 917 introduced by Senator Stafford (R-Vt.) the chairman of the Senate Environment and Public Works Committee.¹⁴ Senator Stafford's bill would amend Superfund to provide compensation to victims; such provisions were deleted in 1980 in order to achieve passage. The bill would (1) impose a federally mandated statute of limitations, (2) provide a federal right of action for persons alleging injury by hazardous substances and wastes, (3) establish a "no fault" compensation system for economic losses of victims (not an exclusive remedy), (4) require state courts to observe new federal rules relating to the admission of certain evidence, and (5) extend Superfund's termination date to 1990 and expand the fund to $3.2 billion.

The statute of limitations provision is quite lenient. It allows plaintiffs to file suits against both the compensation fund and private defendants at any time within six years from the date they discover the exposure, the harm, and the causal relationship between the two. As long as the plaintiff fails to associate his exposure with his injury, the cause of action, and the defendant's potential liability, remains alive. The opportunity to find evidence with which to construct a defense may be severely compromised if the plaintiff fails to make the connection for a long time.

Under the bill's newly created federal cause of action for medical expenses, the plaintiff's burden of going forward with evidence is also eased. The victim may establish a presumption of causation by introducing evidence (sufficient to support a finding of fact) that he was exposed to a hazard to which defendant contributed, that the amount of exposure was sufficient to contribute significantly to harms of the type suffered by plaintiff, and that exposure probably contributed to the injuries of plaintiff's type. The bill thus stretches the traditional concept of causation. Although it supposedly applies only to claims for medical expenses, in time it may carry over to other claims as well.

The "no fault" compensation system exacerbates for defendants the problems created by the other provisions. Because the remedies are not exclusive, plaintiffs would be able to recover easily from the fund (which is financed by many entirely blameless businesses) and then use that recovery to finance a suit for further damages.

The Mitchell-Randolph Bills

Senators Mitchell (D-Me.) and Randolph (D-W. Va.) have together introduced two related and seemingly overlapping bills, S. 945 and S. 946, as their proposed solution to the toxic tort/victim compensation problem.¹⁵ S. 945 would extend the Superfund program to allow victims to recover medical and burial expenses. The needed funds would come mostly from a tax on the chemical industry. The bill extends Superfund to 1990 or until the fund reaches $6 billion, whichever comes first. The bill also provides to persons harmed a federal cause of action against the responsible party.

S. 946 implements the Superfund study group recommendation by creating a two-tiered system of remedies. The first tier, an administrative compensation remedy, provides full coverage of medical expenses, limited coverage of lost earnings, and death benefits. It would be administered by the states. The bill provides a cause of action for subrogated rights for claims paid by the fund. The second tier consists of the common law and statutory causes of action. The bill directs the states to remove procedural and substantive barriers to such actions and establishes minimum rules for joinder of claimants, apportionment of liability, statutes of limitations, and strict liability. Senator Mitchell intended to "cover a broad range of alternatives," and seems to have done so.

Are three different forums for recovery of medical expenses really needed? One member of the study group considered the two-tier system alone to be duplicative and inefficient.Leaving aside redundancy, the Mitchell — Randolph bills suffer many of the same problems as the Stafford bill. S. 946 ignores the recommendation of three members of the study group that the election to pursue the administrative remedy be binding in most cases. The bill does not heed the warnings that the two-tier system is neither practical, desirable, nor reliable, and that the presumptions established in the first tier are unwarranted. Further, insurance industry representatives have expressed the view that the liabilities engendered by the system's changes in tort law might not be insurable.

The LaFalce Bill

Members of the House of Representatives have been active as well. H.R. 2330, introduced by Representative LaFalce (D-N.Y.), is another bill that builds upon the Superfund study group recommendations.¹⁶ Indeed, it goes further. In addition to administrative compensation, the proposal establishes a nonexclusive federal right of action. Plaintiffs would be able to establish a rebuttable presumption of guilt by producing evidence that they were exposed to a hazard partially caused by the defendant, that exposure can cause injury of the type suffered, and that the exposure level would be reasonably likely to contribute to that class of injury. Considering the difficulty [13 ELR 10177] of disproving the cause-effect relationship in many cases, liability under this bill could easily be established. In another respect, however, the bill seems better than other proposals; its three year statute of limitations begins running when the victim becomes ill or should have known of the existence of the damage or injury.

In addition, H.R. 2330 would establish an independent office within the Department of Health and Human Services (HHS) to compensate victims, direct HHS to study and make a finding on the relationship between exposure to substances and human disease, and enable HHS to seek reimbursement from liable parties. The HHS findings with respect to the existence of an environmental release and its potential for injury could be used by plaintiffs as "conclusive" evidence on those issues.

The Markey Bill

Representative Markey has also introduced a toxic tort legislative package.¹⁷ Part one would amend the Solid Waste Disposal Act¹⁸ to allow claims for medical costs and, within limits, lost wages. It would establish a $1 billion victims compensation fund financed by taxes on petroleum and chemicals. The bill would allow claims to be filed with the Administrator of EPA, and compensation would be provided if the claimant shows that it is highly probable that the exposure contributed significantly to the injury.¹⁹

The bill also would establish a federal cause of action against owners, operators, and transporters jointly or severally and without regard to fault (with some exceptions). Pain and suffering is deemed compensable, along with other economic damages.Once again, the statute of limitations tolls until the plaintiff becomes aware of the connection between the injury and exposure. State court procedural and substantive rules are not affected by the bill.

Like the Mitchell-Randolph bills, the Markey proposal would allow plaintiffs easy access to industry-supplied funds with which they can finance suits against individual defendants. Those suits, in turn, are governed by relaxed requirements with regard to proof of liability. As a result, defendants who contributed to only a very limited degree to a plaintiff's injury may be forced to pay for all damages without having been shown to have been at fault. Because of the long statute of limitations, such defendants may find it very difficult to discover the facts necessary to establish their right of contribution against other defendants not joined in the original suit.

Possible Industry Responses

Industry representatives have expressed a number of different positions on the toxic victim compensation debate. Some have maintained that we do not know enough about hazardous waste compensation issues to determine the best solution. This concern suggests that the federal government should first undertake a thorough study of the nature and extent of injuries from hazardous studies and the extent that those injured are being fairly compensated. If Congress proceeds to act without awaiting a further investigation, however, it would be in industry's interest to attempt to influence the debate by developing reasonable alternatives, including the following.

Administrative Compensation Systems

With regard to administrative compensation schemes, an argument can be made that the fund from which compensation is granted should be supported either by public revenues or by all industries that contribute to toxic substance health injuries. The oil and chemical industry can be expected to object to financing alone a broad victim compensation fund.

As to the compensation provided, it can be argued that the extent of damages recoverable from the fund should be reduced by factors that account for an individual's contribution to the injury. Further, only damages related to the injury forming the basis of the claim should be recoverable — unrelated injuries should not.

What are some other possible factors? Recovery would be allowed only for latent problems, since many of the supposed deficiencies of the current system are grounded on the premise that some chemically-caused injuries take a long time to manifest themselves. In addition, administrative compensation would be an exclusive remedy, so that claimants would not gain windfall double recoveries, and would not use judicial resources twice. Compensation would be limited to economic losses; damages such as pain and suffering would not be recoverable. At the least, punitive damages would not be allowed. Compensation would also not be provided to the extent the injury is already covered by other benefits such as insurance. Finally, contributors to the fund should have standing to challenge and appeal awards in order to assure proper diligence on the part of the administrative tribunal.

Changes to the Traditional Tort Liability Rules

It can be persuasively argued that a properly conceived and constructed administrative compensation scheme is sufficient. Nonetheless, if Congress appears likely to restructure substantive tort law, some key issues should be examined. First, a substantial causation element should be included. It is neither fair nor efficient to shift losses to parties that did not cause harm. Second, liability should be apportioned between defendants and nonparty causes according to the fair share of harm attributable to each. Third, there should be liberal joinder to ensure that all responsible parties are before the court. Industry will undoubtedly argue that legislation should not create joint and several liability but, if it does, it should also include an adequate provision for rights of contribution.

Conclusion

Although victim compensation legislation arises in the [13 ELR 10178] context of particular legal and scientific issues, it also involves broad policy considerations. How much evidence that a problem exists and how much information about the nature of the problem should one have before taking action?What should the federal role be and what should be left to the states? Should the legislation he very specific or should there be a broad delegation of authority? How large a safety net should be created? Where should the burdens fall — on the general public? Industry generally? On particular industries? Congress will have to make these key policy decisions in order to develop a legislative approach in this area.

1. Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9657, ELR STAT. 41941. Prior to the enactment of Superfund, the government brought abatement actions relying principally upon § 7003 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6973, ELR STAT. 41901.

2. 42 U.S.C. § 9651(e), ELR STAT. 41954.

3. S. COMM. ON ENVIRONMENT AND PUBLIC WORKS, INJURIES AND DAMAGES FROM HAZARDOUS WASTES — ANALYSIS AND IMPROVEMENT OF LEGAL REMEDIES: A REPORT TO CONGRESS IN COMPLIANCE WITH SECTION 301(E) OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980 (P.L. 96-510) BY THE SUPERFUND SECTION 301(e) STUDY GROUP, S. REP. NO. 97-12, 97th Cong., 2d Sess. (1982).

4. See, e.g., J. TRAUBERMAN, STATUTORY REFORM OF TOXIC TORTS: RELIEVING LEGAL, SCIENTIFIC, AND ECONOMIC BURDENS ON THE CHEMICAL VICTIM (Environmental Law Institute 1983).

5. See Garrett, The Law of Toxic Substances, 32 ENVTL. HEALTH PERSP. 279 (Oct. 1979).

6. The parens patriae powers of the King of England were retained by the states as part of their police powers. Thus the federal courts are not common law tribunals; they do not have the general power to develop and apply their own rules of decision. Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). The Supreme Court recently reaffirmed this principle in the environmental area, holding that only in limited instances and as a necessary expedient should federal courts develop such substantive common law. City of Milwaukee v. Illinois, 451 U.S. 304, 11 ELR 20406 (1981). Exceptions have been made where there is an overriding federal interest and no federal statutory scheme. See Wheeldin v. Wheeler, 373 U.S. 647, 651 (1963).

7. The other principal agencies are the Occupational Safety and Health Administration, the Food and Drug Administration, and the Consumer Product Safety Commission.

8. See Garrett, The Law of Toxic Substances, supra note 5. There are also a number of other statutes, such as the Black Lung Act, which provide compensation for certain classes of individuals. See Trauberman, Compensating Victims of Toxic Substances; Existing Federal Mechanisms, 5 HARV. ENVTL. L. REV. 1 (1981).

9. See supra note 3.

10. Supra note 4.

11. See infra note 14.

12. See infra note 15.

13. The study group report identifies an emerging trend that limits the liability of successor land owners, but fails to discuss the possibilities of recovery from the former owner. Regarding apportionment of damages caused by multiple defendants, the rule in RESTATEMENT (2D) OF TORTS § 433B(2) shifts the burden of proof of apportionment to defendants who contribute to an indivisible injury, and also allows the suit to progress without joinder of all potential defendants.

14. S. 917, 98th Cong., 1st Sess., 129 CONG. REC. S3927-29 (daily ed. Mar. 24, 1983).

15. S. 945 and S. 946, 98th Cong., 1st Sess., summarized in 129 CONG. REC. S3985 (daily ed. Mar. 24, 1983).

16. H.R. 2330, 98th Cong., 1st Sess., summarized in 129 CONG. REC. H1713-14 (daily ed. Mar. 24, 1983).

17. H.R. 2582, 98th Cong., 1st Sess. It was previously reported that Representatives Markey (D.-Mass.) and Florio (D-N.J.) had jointly drafted a bill. INSIDE E.P.A. No. 13, at 11-12 (Apr. 1, 1983).

18. 42 U.S.C. §§ 6901-6987, ELR STAT. 41901.

19. This presumption of causation would not apply, however, if other evidence indicates that the exposure did not cause or significantly contribute to the injury. After paying the claim, the United States is subrogated to the rights of the victim and can sue the responsible parties.